This part from doc 270 shows some of what we are up against in relaying information.
Ambiguous § 1102(b)(3)(A) “Access to Information” Requirement Must Be
Defined to Allow Committee to Fulfill Its § 1103(c) Powers and Duties
15. Section 1102(b)(3) requires the Committee to “provide access to information” to
ESHs.
16. The § 1102(b)(3)(A) “access to information” requirement, however, is not defined
in the statute, and there are no guidelines for the Committee as to the type, kind and extent of the
information that the Committee must provide to ESHs. The legislative history of § 1102(b)(3)
does not provide any guidance on the application of this provision.
17. The vagueness of the “access to information” requirement creates significant
issues for Chapter 11 debtors and committees appointed under § 1102(a). Typically, debtors and
other parties in interest in a Chapter 11 case share various confidential and other non-public
proprietary information with an official committee to facilitate a committee’s performance of its
statutory duties, which as discussed above includes, among other things, investigating a debtor’s
acts, conduct, assets and liabilities. Committees use this information to assess, among other
things, a debtor’s capital structure, asset values, opportunities for restructuring, and the debtor’s
overall prospects for reorganization. In addition, committees typically execute confidentiality
agreements or enter into other similar arrangements with debtors and/or other committees.
Through these agreements and other arrangements, a debtor or committee can ensure that a
recipient committee’s members will keep its information confidential and will not use
confidential information except in connection with its Chapter 11 case and on terms acceptable
to the debtor and the committee. And, of course, as an inherent aspect of performing its statutory
